II. Overview of the Litigation Privilege

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

II. Overview of the Litigation Privilege

Privileges may be either absolute or qualified. A privilege is described as absolute when it cannot be overcome by a defendant's malice. In contrast, a plaintiff may defeat a qualified privilege by proving that the defendant acted maliciously, thus abusing the privileged occasion. Section 586 of the Restatement (Second) of Torts provides:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.¹⁰

Parties to judicial proceedings enjoy a similar privilege,¹¹ as do witnesses.¹²

The Restatement formulation of lawyers' litigation privilege has been adopted in nearly every state. California, which has codified the litigation privilege,¹³ formulates the test for its application slightly differently. In California, "the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the litigation."¹⁴ Only two states appear to stray from treating the litigation privilege as absolute. Georgia affords lawyers an absolute privilege for statements in pleadings, but grants them only qualified immunity for other statements made in performing legal duties.¹⁵ Louisiana grants private lawyers a qualified privilege but affords prosecutors absolute immunity for statements made within the scope of their prosecutorial duties.¹⁶ Although, as the Georgia and Louisiana deviations suggest, there is room to argue that a qualified privilege for lawyers may be preferable to an absolute one, the certainty that accompanies absolute privilege weighs heavily in its favor. The concern that an absolute privilege may occasionally protect unscrupulous lawyers must yield to the reality that judging each case on its own merits exposes principled lawyers to suits by vindictive adversaries.

The prevailing view holds that the litigation privilege affords lawyers an affirmative defense to alleged misconduct within its scope.¹⁷ This is consistent with the organization of the Restatement, which discusses the privilege in a chapter devoted to defenses to defamation actions.¹⁸ Some courts, however, hold that the litigation privilege confers a true immunity on lawyers.¹⁹ The difference in these two approaches is potentially significant and illustrates the need for precision when describing the protection the litigation privilege affords,²⁰ despite courts' tendency to use the terms "immunity" and "privilege" interchangeably.²¹ If the privilege affords a true immunity to suit rather than a defense to liability, conduct falling within its scope is not actionable, and a defendant can claim an entitlement not to stand trial or to face other litigation burdens, such as the expense and inconvenience associated with discovery.²² Treating the litigation privilege as an immunity from suit means that a lawyer whose motion to dismiss a complaint or petition against her based on the litigation privilege is denied possibly has a right to an immediate appeal under the collateral order doc-trine,²³ although the doctrine's application in this context is unclear.²⁴ The same result holds if, instead of moving to dismiss, the lawyer unsuccessfully moves for judgment on the pleadings or for summary judgment. On the other hand, if the litigation privilege is an affirmative defense, meaning that the only "immunity" it affords is an immunity to damages, the order denying the lawyer's motion is interlocutory and she has no right to immediately appeal.²⁵ That leaves a lawyer desiring immediate appellate relief to seek an extraordinary writ, which a court is unlikely to grant.²⁶

Regardless of whether the lawyer's litigation privilege is an affirmative defense or a type of immunity, its application is a question of law.²⁷ Because the applicability of the privilege is a question of law, courts are positioned to dispose of claims early in litigation—as when presented with a motion to dismiss—and thus minimize disruption to the attorney-client relationship.²⁸ Indeed, trial courts are encouraged to rule on litigation privilege claims as early as possible in the proceeding.²⁹ Unfortunately, early disposition of meritless cases or claims often requires that the applicability of the privilege be apparent on the face of the complaint or petition, which is not always the situation.³⁰ As a result, a motion to dismiss may not be a viable option for a defendant.³¹ Additionally, cases often involve lawyers' out-of-court conduct, so that a court's privilege analysis becomes fact-intensive and -dependent, thus requiring discovery and slowing resolution of the issue.³²

Finally, while all doubts about the litigation privilege should be resolved in favor of its recognition, there is much against which it does not protect. The litigation privilege does not confer upon lawyers a license to defame or lie. It does not shield lawyers against professional discipline,³³ nor against legal malpractice allegations by clients arising out of their representation in judicial proceedings.³⁴ The litigation privilege generally does not protect lawyers against liability for malicious prosecution,³⁵ or other causes of action characterized by the initiation of baseless litigation or litigation intended to advance some improper purpose.³⁶ The majority view is...